Estate planning for a client's digital assets is an area of law that is still fairly new. However, I have experienced increasing demand by clients for services in this area as we continue to run full speed into the digital age.
This article will briefly identify some of the issues involving digital assets and steps that you can take to protect your digital assets as part of your estate planning efforts.
What Are Digital Assets?
The two main classes of digital assets are (1) any online account that requires a user name and password; or (2) any file stored in places including an individual's computer, mobile phone, server, local DVD or CD-ROM or online storage sites.
If you are the only person who has access to your online account, then what happens when you die? Much of the concern involves the rights of the online company, which were granted when you initially accepted the account's Terms of Service (TOS).
Several issues to consider for online accounts requiring a user name and a password include the following:
Files on an individual's computer are difficult enough to find, depending on the individual's level of organization or disorganization. A personal representative's job can become more difficult if the important data is stored off site.
Additionally, there are two main kinds of digital files to consider:
Steps You Can Take Now
Through their TOS, several online companies have the right to delete an online account within a certain period of time after an individual's death. Also, a personal representative of a deceased individual's estate needs the ability to protect the decedent's digital files and hardware from beneficiaries who seek their possession before proper administration. For example, when there is a dispute among the potential beneficiaries of a deceased individual and those individuals may know passwords and can gain access to the deceased individual's assets.
The following are some practical steps you can take to protect your digital assets:
After an individual's death, I oftentimes see first-hand the effects of the number of people who try to avoid a lawyer's assistance completely in favor of estate planning services from what oftentimes proves to be unreliable. Based on the fact that digital asset planning as part of an individual's estate planning is a very new area of law, it is important to consult with your legal advisor with respect to any efforts that you are making concerning planning with respect to your digital assets. Although there are already several dozen online services offering digital death and afterlife services, you should be careful not to place all of your confidence and planning under many of these untested systems.
If you have any questions regarding your digital assets and how you may want to consider planning for these assets, please do not hesitate to contact us.
Dan A. Penning